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New cookie act

On 28 June 2012, the Belgian Senate has adopted the new cookie provision by modifying the existing Belgian Act on Electronic Communication. The new provision shall enter into force on 1 October 2012. By enacting the cookie provision, the Belgian Senate transposed Article 5.3 of Directive 2002/58 as amended by Directive 2006/24. The official deadline for the implementation of this article was 25 May 2011. However, Belgium, among other countries, showed reluctance to transpose the rules into national law because of the on-going controversy on the subject. In May 2012, this incited the European Commission to request the European Court of Justice to impose fines on five countries, including Belgium, for failure to enact the appropriate national legislation.

The new measure requires website owners to obtain internet users’ consent before using certain kinds of ‘cookies’. In their most innocent form, cookies have a mere ‘technical’ use and they are used to improve a user’s experience by saving information such as log-in details and other preferences relating to a particular website. If the files known as cookies are placed on a user’s computer for the first time, they are known as ‘first party’ cookies – in contrast to ‘third party’ cookies. The latter are mostly used by advertisers and direct marketing service providers, and this use often collides with the privacy expectations of the average user.

The new Belgian provision makes a distinction between these two kinds of cookies. Whereas the Belgian legislator does not call for explicit permission whenever a fist party cookie is set, such permission is required when third party cookies are installed on a user’s computer. Unlike the Dutch cookie legislation, which imposes ‘unequivocal’ permission for the installation of both first and third party cookies, the Belgian law is more lenient. The practical impact of the new cookie provision cannot be assessed at this stage. (LMA)

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